Pinson v. Carvajal

Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 1 of 40 1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Jeremy Pinson, No. CV-22-00298-TUC-RM 10 Plaintiff, ORDER 11 v. 12 Federal Bureau of Prisons, 13 Defendant. — 14 — 15 Plaintiff Jeremy Pinson, who was formerly confined in the United States 16 Penitentiary in Tucson, Arizona (“USP-Tucson”) and is now confined in USP-Allenwood 17 in Pennsylvania, sues the Federal Bureau of Prisons (“BOP”) for injunctive relief under — 18 — 28 U.S.C. § 1331 . (Doc. 14.) Pending before the Court are Plaintiff’s Motion for 19 Reconsideration (Doc. 29), Motion to Transfer Venue (Doc. 41), numerous Motions 20 seeking injunctive relief (Docs. 27, 31, 35, 62, 80), and several Motions seeking to 21 supplement the record with respect to the requests for injunctive relief (Docs. 58, 97, 22 100).1 23 I. Procedural Background 24 Plaintiff initiated this action on June 29, 2022, by filing a pro se civil rights 25 Complaint. (Doc. 1.) Plaintiff subsequently filed an Application to Proceed in Forma 26 Pauperis (Doc. 4) and a Motion for Preliminary Injunction (Doc. 7). On screening under 27 28 U.S.C. § 1915A(a), the Court dismissed Plaintiff’s Complaint for failure to state a 28 1 Plaintiff’s Motions seeking preservation of video evidence (Docs. 79, 89) and her Renewed Motion for Appointment of Counsel (Doc. 111) will be resolved separately. Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 2 of 40 1 claim and denied the Motion for Preliminary Injunction. (Doc. 8.) Plaintiff filed a First 2 Amended Complaint (Doc. 10) and a Motion for Reconsideration challenging the denial 3 of her Motion for Preliminary Injunction (Doc. 11). The Court dismissed the First 4 Amended Complaint for failure to state a claim and denied the Motion for 5 Reconsideration. (Doc. 13.) Plaintiff then filed the operative Second Amended 6 Complaint (“SAC”) (Doc. 14) and numerous additional motions including, on March 16, 7 2023, another Motion for Preliminary Injunction (“March 16 PI Motion”) (Doc. 18). On 8 May 19, 2023, the Court ordered the BOP to answer Counts One, Two, and Three of the 9 SAC, dismissed the remaining claim and defendants without prejudice, and denied the 10 motions, including the March 16 PI Motion. (Doc. 23.) Plaintiff moved for 11 reconsideration of the denial of the March 16 PI Motion (Doc. 29), and also filed 12 numerous other motions. 13 Defendant filed a timely Answer to the SAC on September 29, 2023. (Doc. 59; 14 see also Doc. 55.)2 The Court issued a Scheduling Order on October 5, 2023. (Doc. 62.) 15 On January 31, 2024, the Court revised the Scheduling Order to extend certain deadlines, 16 including the deadline for moving to amend pleadings and join additional parties. (Doc. 17 110.) Pursuant to the revised schedule, the deadline for moving to amend pleadings is 18 February 29, 2024, the deadline for completion of discovery is April 8, 2024, and the 19 deadline for filing dispositive motions on the merits of Plaintiff’s claims is May 8, 2024. 20 (Id.) 21 II. Allegations of SAC 22 In her SAC, Plaintiff states that she is transgender and identifies as female but has 23 been incarcerated in male prisons since entering Defendant’s custody. (Doc. 14 at 11– 24 21.)3 She also indicates that she has gender dysphoria, a serious medical condition 25 resulting from the incongruence between her experienced and expressed gender and the — 26 — — 2 — The Court extended Defendant’s deadline for answering or otherwise responding to the 27 SAC pending resolution of a motion Plaintiff had filed seeking leave to file a third amended complaint. (Doc. 49; see also Doc. 36.) Plaintiff later withdrew her motion to 28 file a third amended complaint. (Doc. 50.) — 3 — The Court cites to the page numbers generated by the Court’s electronic filing system. -2Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 3 of 40 1 sex she was assigned at birth. (Id. at 8, 12–13, 24.) Plaintiff explains that placement in 2 male prisons has caused her to suffer pervasive sexual harassment and discrimination, as 3 well as multiple assaults, and that it has negatively affected her mental health and led to 4 suicide attempts. (Id. at 13–24.) She alleges that the BOP and its employees have failed 5 to ensure her safety, and that the BOP has failed to follow the World Professional 6 Association for Transgender Health Standards of Care for the Health of Transexual, 7 Transgender, and Gender Nonconforming People (“WPATH Standards of Care”). (Id. at 8 8–9, 21–25.) 9 Plaintiff states that the BOP released a Transgender Offender Manual on January 10 18, 2017, which established the Transgender Executive Council (“TEC”) to offer advice 11 and guidance on the unique treatment and management needs of transgender inmates. 12 (Id. at 10–11.) She further states that the Manual was revised in 2018 to require the TEC 13 to use biological sex as the initial determination for designation or transfer, but that the 14 Manual directed the BOP to give serious consideration to a transgender prisoner’s own 15 views with respect to his or her safety. (Id. at 11.) Plaintiff alleges that, despite this 16 requirement, Defendant has never asked Plaintiff about her views with respect to her own 17 safety prior to placing her in male prisons. (Id. at 19–20.) Plaintiff further states that, in 18 2021, Defendant issued a Female Offender Manual that recognized LGBTQ prisoners in 19 female prisons and set forth the need to manage such prisoners in certain ways; however, 20 Defendant made no similar changes to its policies for LGBTQ prisoners in male prisons. 21 (Id. at 22.) 22 Plaintiff indicates that her security classification has been calculated using the 23 BOP’s policies for males, resulting in her being housed in high-security male institutions. 24 (Id. at 13–14.) Plaintiff alleges that “[b]ut for her penis,” Defendant “would not have 25 housed her in a men’s facility” when she entered BOP custody in 2007, and “would not 26 have used her biological sex as the initial determination for designation or transfer[.]” 27 (Id.) Plaintiff seeks various forms of injunctive relief. (Id. at 7.) 28 On screening, the Court determined that the SAC sufficiently states Eighth -3Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 4 of 40 1 Amendment claims for inadequate medical/mental healthcare and failure to protect in 2 Counts One and Three, and a Fifth Amendment Equal Protection claim in Count Two. 3 (Doc. 23.) The Court dismissed on screening Count Four of the SAC, in which Plaintiff 4 asserted a claim under 42 U.S.C. §§ 1985 and 1986 alleging that BOP employees placed 5 her in the Special Housing Unit (“SHU”) of USP-Tucson and requested a transfer to 6 another institution in retaliation for Plaintiff’s lawsuits. (Doc. 14 at 26–33; Doc. 23 at 6.) 7 The Court dismissed that claim because neither 42 U.S.C. § 1985 nor § 1986 authorize 8 injunctive relief, and Plaintiff seeks only injunctive relief in her SAC. (Doc. 23 at 6.) 9 III. Motion to Transfer Venue (Doc. 41) 10 In her Motion to Transfer Venue, Plaintiff requests that the above-captioned case 11 be transferred to the United States District Court for the District of Columbia. (Doc. 41 12 at 7.) She argues that she would have initiated this case in the District of Columbia if she 13 had known the BOP was going to transfer her to a prison in Pennsylvania. (Id. at 2, 5.) 14 She argues that transferring this case to the District of Columbia is warranted because 15 Washington, D.C. is the location of most of the witnesses and evidence concerning 16 decisions by the TEC and investigations by the Office of Internal Affairs. (Id. at 4–6.) 17 Plaintiff further argues that, although the request for her transfer originated in Arizona, 18 the TEC—located in Washington D.C.—ultimately controls her transfer decisions. (Id.) 19 Defendant argues that Plaintiff has not met her burden to establish that transfer of 20 this case to the District of Columbia is warranted. (Doc. 53 at 3–5.) Defendant argues 21 that Plaintiff’s transfer to a prison in Pennsylvania does not establish that litigation in the 22 District of Columbia would be more convenient, and Defendant further argues that 23 relevant witnesses and evidence are located in Arizona. (Id.) In reply,4 Plaintiff argues 24 that Washington, D.C. is closer to Pennsylvania than Arizona, and she reiterates that 25 decisions about where she is housed are made by the TEC, which is located in 26 Washington, D.C. (Doc. 62 at 62–65.) 27 Pursuant to 28 U.S.C. § 1404 (a), a court may transfer a civil action to any other 28 4 Plaintiff included a Reply in support of her Motion to Transfer in an Expanded Motion for Preliminary Injunction that she filed on October 5, 2023. (Doc. 62.) -4Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 5 of 40 1 district where it might have been brought “[f]or the convenience of parties and 2 witnesses,” and “in the interest of justice.” Courts have discretion “to adjudicate motions 3 for transfer according to an individualized, case-by-case consideration of convenience 4 and fairness.” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000) 5 (internal quotation marks omitted). Factors to be considered include: 6 (1) the location where the relevant agreements were negotiated and executed, 7 (2) the state that is most familiar with the governing law, (3) the plaintiff’s choice of forum, 8 (4) the respective parties’ contacts with the forum, (5) the contacts relating to the plaintiff’s cause of action in the chosen 9 forum, (6) the differences in the costs of litigation in the two forums, 10 (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, 11 (8) the ease of access to sources of proof. — 12 — Id. at 498–499. 13 To the extent that Plaintiff must show a change in circumstances since the 14 inception of this case to justify transfer, see B&G Foods N.A., Inc. v. Embry, No. 2:2015 cv-00526-KJM-DB, 2020 WL 3605070 , at *2–3 (E.D. Cal. July 2, 2020), the Court finds 16 that Plaintiff’s transfer to the USP-Allenwood is a significant change in circumstances, as 17 that institution is closer to Washington, D.C. than to Arizona. Plaintiff’s proximity to 18 Washington, D.C. weighs in favor of transfer, as does the fact that witnesses relevant to 19 the decision-making of the TEC are located in Washington, D.C. 20 However, other witnesses and evidence are located in Arizona. Plaintiff alleges 21 that the TEC’s most-recent transfer decision was made at the request of the Warden of 22 USP-Tucson, and she further alleges that USP-Tucson staff provided false information to 23 the TEC that affected the TEC’s determination of where Plaintiff should be housed. (See, 24 e.g., Doc. 14 at 24; Doc. 100 at 2.) Evidence and witnesses relevant to those allegations 25 are located in Arizona, as are evidence and witnesses relevant to Plaintiff’s Eighth 26 Amendment failure-to-protect and inadequate-medical-care claims. Furthermore, 27 although both this Court and the District of Columbia are familiar with the governing 28 law, this Court has added familiarity with Plaintiff and her claims, as this Court has -5Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 6 of 40 1 presided over numerous lawsuits filed by Plaintiff, some of which have included requests 2 for relief similar to those at issue here. Accordingly, the Court does not find that transfer 3 is warranted pursuant to 28 U.S.C. § 1404 (a). Plaintiff’s Motion to Transfer will be 4 denied. 5 IV. Motion for Reconsideration (Doc. 29) 6 On March 16, 2023, Plaintiff requested a preliminary injunction prohibiting the 7 BOP from transferring her to the Allenwood Secure Administrative Unit (“SAU8 Allenwood”) and requiring the BOP to treat her as it treats female inmates under its 9 policies and regulations. (Doc. 18 at 11.) Plaintiff premised the March 16 PI Motion on 10 her Equal Protection claim and argued that the BOP classifies its inmates and calculates 11 their point scores and public safety factors on the basis of sex, using separate security 12 designation tables and custody variance tables for male and female inmates. (Id. at 2–4.) 13 Plaintiff alleged that, as a result of her external genitalia, the BOP has used its male 14 policies to calculate her points and public safety factors. (Id. at 4, 6.) Plaintiff further 15 alleged that she would be classified as low security if treated as a female under the BOP’s 16 policies, and she could not be housed at USP-Tucson or SAU-Allenwood if the BOP 17 treated her as female. (Id. at 4, 10.) 18 The Court denied Plaintiff’s March 16 PI Motion in its May 19, 2023 Screening 19 Order. (Doc. 23.) The Court found that “Plaintiff’s requested injunctive relief is not of 20 the same character and lies wholly outside the issues” in her SAC, because Plaintiff does 21 not make any allegations concerning transfer to SAU-Allenwood in the SAC and because 22 “Plaintiff’s request that the BOP be ordered to treat Plaintiff as a female inmate is 23 diametrically opposed to the permanent injunctive relief she seeks” in the SAC, namely, 24 that the BOP be prohibited “from using sex as a basis for designation or transfer initial 25 determinations.” (Id. at 8–9.) 26 In her Motion for Reconsideration, Plaintiff argues that her request that the BOP 27 cease treating her as a male on the basis of her sex assigned at birth and instead treat her 28 as a female consistent with her gender identity lies “at the core” of her SAC, and that her -6Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 7 of 40 1 March 16 PI Motion was consistent with that aim. (Doc. 29 at 1–2.) Plaintiff argues that 2 the Court misinterpreted Plaintiff’s use of the terms “female” and “sex” to “mean the 3 same thing,” when Plaintiff intended the term “sex” to refer to her assigned sex and the 4 term “female” to refer to her gender identity. (Id.). Plaintiff further argues that her 5 requested injunctive relief related to her transfer to SAU-Allenwood is encompassed in 6 the relief requested in her SAC because Allenwood is a male facility, and its Secure 7 Administrative Unit is a “quantum increase in restrictive confinement that makes transfer 8 to a women’s prison more difficult.” (Id. at 2–3.) 9 Pursuant to Local Rule of Civil Procedure (“LRCiv”) 7.2(g)(2), the Court ordered 10 Defendant to respond to the Motion for Reconsideration. (Doc. 34.) In its Response, 11 Defendant argues that the injunctive relief requested in Plaintiff’s March 16 PI Motion is 12 not sufficiently related to the SAC, that Plaintiff has not satisfied the standard for 13 obtaining a preliminary injunction, and that the requested injunctive relief is not narrowly 14 tailored. (Doc. 54.) In her Reply, Plaintiff argues that the requested injunctive relief 15 regarding SAU-Allenwood is connected to the operative SAC because transfer to SAU16 Allenwood diminishes her ability to transfer to a women’s prison and to access gender17 affirming surgery, and because the transfer will result in Plaintiff continuing to be held in 18 solitary confinement in a male facility. (Doc. 62 at 46, 48.)5 19 A. Legal Standard 20 Motions for reconsideration should be granted only in rare circumstances. 21 Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). A motion for 22 reconsideration is appropriate where the district court “(1) is presented with newly 23 discovered evidence, (2) committed clear error or the initial decision was manifestly 24 unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J, 25 Multnomah County v. ACandS, Inc., 5 F.3d 1255 , 1263 (9th Cir. 1993). Motions for 26 reconsideration should ordinarily be denied “absent a showing of manifest error or a 27 showing of new facts or legal authority that could not have been brought to [the Court’s] 28 5 Plaintiff included a Reply in support of her Motion for Reconsideration in the Expanded Motion for Preliminary Injunction that she filed on October 5, 2023. (Doc. 62.) -7Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 8 of 40 1 attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). Mere disagreement with a 2 previous order is an insufficient basis for reconsideration. See Leong v. Hilton Hotels 3 Corp., 689 F. Supp. 1572, 1573 (D. Haw. 1988). 4 B. Discussion 5 A court may grant preliminary injunctive relief only if the relief is “of the same 6 nature as that to be finally granted.” Pac. Radiation Oncology, LLC v. Queen’s Med. 7 Ctr., 810 F.3d 631, 636 (9th Cir. 2015). There must be “a sufficient nexus between the 8 claims raised in a motion for injunctive relief and the claims set forth in the underlying 9 complaint itself.” Id. 10 The Court agrees with Plaintiff that it erred in finding her requested injunctive 11 relief outside the scope of the SAC’s allegations to the extent Plaintiff seeks a 12 preliminary injunction requiring the BOP to treat her as a female inmate. The Court 13 addresses the merits of that requested injunctive relief in Section V(F), infra. 14 The Court finds that Plaintiff has not shown clear error in the Court’s conclusion 15 that the claims raised in Plaintiff’s operative SAC lack a sufficient nexus to Plaintiff’s 16 request that the BOP be prohibited from transferring her to SAU-Allenwood.6 Although 17 SAU-Allenwood is a male institution and Plaintiff’s SAC alleges the BOP should house 18 her in a female institution, Plaintiff was housed in a male institution—USP-Tucson—at 19 the time she filed her March 16 PI Motion. Accordingly, prohibiting the BOP from 20 transferring Plaintiff to SAU-Allenwood would not have resulted in Plaintiff being 21 housed in a female institution. Furthermore, although Plaintiff alleges that her transfer to 22 SAU-Allenwood will make “transfer to a women’s prison more difficult” (Doc. 29 at 3), 23 she does not allege that she would be unable to transition from SAU-Allenwood to a 24 female prison or to an intermediatory prison in pursuit of confinement consistent with her 25 gender identity.7 The Court finds that there is simply too tenuous of a connection 26 6 Plaintiff was transferred to SAU-Allenwood during the pendency of her Motion for Reconsideration. (See Doc. 104.) Accordingly, Plaintiff’s request for injunctive relief 27 prohibiting her transfer appears to be moot, and the Court is without authority to grant the requested relief for that reason as well. 28 7 To the extent Plaintiff argues in her Reply that a transfer to SAU-Allenwood would diminish her access to gender affirming surgery (Doc. 62 at 48), the Court notes that -8Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 9 of 40 1 between Plaintiff’s requested injunctive relief regarding SAU-Allenwood and the Equal 2 Protection claim on which Plaintiff’s March 16 PI Motion was premised. 8 In the 3 alternative, for the reasons discussed in Section V(F)(2) and for failure to satisfy the 4 standards of Federal Rule of Civil Procedure 65(b), the Court finds that Plaintiff is not 5 entitled to a temporary restraining order prohibiting her transfer to SAU-Allenwood. 6 Accordingly, the Court will deny Plaintiff’s Motion for Reconsideration to the extent it 7 requests reconsideration of the Court’s denial of her request for a temporary restraining 8 order prohibiting her transfer to SAU-Allenwood. 9 V. Motions for Injunctive Relief (Docs. 18, 27, 31, 35, 62, 80) and Motions to 10 Supplement (Docs. 58, 97, 100) 11 In the March 16 PI Motion and her numerous other pending Motions for injunctive 12 relief, Plaintiff requests that the Court: 13 1. Enjoin her transfer from USP Tucson to SAU-Allenwood. (Doc. 18 at 11; Doc. 80 14 at 11.) 2. Require the BOP to treat her as it treats female inmates under its policies and 15 regulations. (Doc. 18 at 11; Doc. 31 at 58.) 16 3. Require the BOP to begin Plaintiff’s transition to a female facility. (Doc. 31 at 17 57.) 4. Enjoin the BOP and its staff from performing cross-gender strip searches of 18 Plaintiff. (Doc. 27 at 6.) 19 5. Enjoin the BOP from using cisgender male inmates or staff to watch Plaintiff on suicide watch. (Id.) — 20 — 6. Require the BOP to enforce the antiretaliatory regulation of the Prison Rape 21 Elimination Act (“PREA”), 28 C.F.R. § 115.67 . (Id. at 6-7; Doc. 62 at 2.) 22 7. Require the BOP to fully investigate Plaintiff’s claims of violations of 28 C.F.R. § 115.67 and 18 U.S.C. §§ 1512 and 1515. (Doc. 31 at 57–58.) — 23 — — 24 — Plaintiff previously sought injunctive relief requiring that she be provided gender 25 affirming surgery in Pinson v. United States Department of Justice, CV 19-00235-TUCRM (D. Ariz. 2019). The Court granted summary judgment against Plaintiff in that case 26 (Doc. 127 in CV 19-235), and Plaintiff’s appeal remains pending in Ninth Circuit case number 22-15687. 27 8 As stated in Section II, supra, in former Count Four of the SAC, Plaintiff alleged a retaliatory request for transfer. (Doc. 14 at 26–32.) However, Count Four was dismissed 28 on screening (Doc. 23 at 6), and Plaintiff’s March 16 PI Motion was premised solely on the Equal Protection Claim asserted in Count Two of the SAC (Doc. 18). -9Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 10 of 40 1 8. Require the BOP to provide Plaintiff with the means to identify, locate, and 2 contact potential expert witnesses. (Id. at 57.) 9. Require the BOP to provide Plaintiff with at least two hours of law library time — 3 — twice per week. (Id.) 4 10. Require the BOP to provide Plaintiff with access to a photocopier, pen, paper, 5 envelopes, and stamps as needed throughout this case. (Id.) 11. Enjoin the BOP from housing Plaintiff in isolation, which denies her the ability to — 6 — collect witness declarations and other evidence. (Id.; Doc. 35 at 21.) 7 12. Enjoin the BOP from continuing to segregate Plaintiff in the SHU. (Doc. 62 at 2, 8 60–62.) 13. Enjoin the BOP from withholding Plaintiff’s mail containing a Notice of Appeal. — 9 — (Doc. 35 at 20.) 10 14. Enjoin the BOP from withholding/tampering with Plaintiff’s general 11 correspondence sent by the Brennan Center for Justice. (Id. at 20–21.) 15. Enjoin the BOP from opening and inspecting Plaintiff’s legal mail outside her — 12 — presence. (Id. at 21.) 13 16. Enjoin the BOP from unreasonably limiting the frequency or duration of 14 Plaintiff’s telephone calls with attorneys. (Id.)9 15 As an initial matter, the Court notes that it is improper to file multiple motions 16 seeking the same or overlapping relief. The practice makes it burdensome for Defendant 17 to respond to Plaintiff’s requests and for this Court to adjudicate them. 18 Furthermore, LRCiv 7.2(e)(1) provides that a motion and its supporting 19 memorandum may not exceed 17 pages. Pro se litigants are bound by the rules of 20 procedure. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995); see Carter v. Comm’r of 21 Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986) (“[a]lthough pro se, [a litigant] is 22 expected to abide by the rules of the court in which [s]he litigates”). Plaintiff has filed 23 motions that far exceed the page limit of LRCiv 7.2, including a 58-page Motion for 24 Temporary Restraining Order to Prevent Further Violations of the First and Fifth 25 Amendments (Doc. 31) and a 65-Page Expanded Motion for Preliminary Injunction — 26 — — 9 — To the extent Plaintiff has requested in her Motions the appointment of a special master, 27 the Court finds such appointment is not necessary or appropriate at this time. The Court also finds that an evidentiary hearing is not necessary or warranted at this time, though it 28 will take Plaintiff’s request for an evidentiary hearing under advisement pending the supplemental briefing required by this Order. - 10 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 11 of 40 1 (Doc. 62). While the Court is inclined to give Plaintiff some leeway with respect to 2 hand-written motions, these two Motions so grossly exceed the page limits of LRCiv 7.2 3 that the Court finds summary denial appropriate.10 4 For the reasons discussed above in Section IV, supra, the Court declines to 5 reconsider its finding that Plaintiff’s requested injunctive relief prohibiting her transfer to 6 SAU-Allenwood lacks a sufficient nexus to the allegations of her operative SAC. 7 Furthermore, Plaintiff has already been transferred to SAU-Allenwood. Accordingly, the 8 Court will deny Plaintiff’s Renewed Motion for Temporary Restraining Order (Doc. 80), 9 in which Plaintiff renews her already-denied request for an injunction prohibiting her 10 transfer. (Doc. 80.) The Court addresses below Plaintiff’s other requests for injunctive 11 relief, as well as her related requests to supplement. 12 A. Legal Standard 13 “A preliminary injunction is an extraordinary and drastic remedy, one that should 14 not be granted unless the movant, by a clear showing, carries the burden of persuasion.” 15 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (internal quotation marks omitted); 16 see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“[a] 17 preliminary injunction is an extraordinary remedy never awarded as of right”). 18 Nonetheless, “federal courts must not shrink from their obligation to enforce the 19 constitutional rights of all persons, including prisoners” and must not “allow 20 constitutional violations to continue simply because a remedy would involve intrusion 21 into the realm of prison administration.” Porretti v. Dzurenda, 11 F.4th 1037 , 1047 (9th 22 Cir. 2021) (citation omitted). 23 A plaintiff seeking a preliminary injunction must show: (1) she is likely to succeed 24 on the merits; (2) she is likely to suffer irreparable harm in the absence of injunctive 25 relief; (3) the balance of equities tips in her favor; and (4) an injunction is in the public 26 interest. Winter, 555 U.S. at 20 . The moving party has the burden of proof on each 27 element of the test. Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016 , 1027 28 10 In the alternative, the Court finds the Motions should be denied on the merits for the reasons addressed below. - 11 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 12 of 40 1 (E.D. Cal. 2000). When the government opposes a preliminary injunction, “[t]he third 2 and fourth factors of the preliminary-injunction test—balance of equities and public 3 interest—merge into one inquiry.” Porretti, 11 F.4th at 1047. Under the “sliding scale” 4 test, if a plaintiff shows that the balance of hardships “tips sharply” in her favor, then the 5 plaintiff must only show “serious questions going to the merits”—in addition to 6 satisfying the public interest and irreparable harm factors—in order to justify preliminary 7 injunctive relief. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 , 1134–35 (9th 8 Cir. 2011) (finding “serious questions” version of the sliding scale test for preliminary 9 injunctions remains viable after Winter). 10 However, where a plaintiff seeks a mandatory rather than a prohibitory injunction, 11 the plaintiff is “subject to a higher standard.” Hernandez v. Sessions, 872 F.3d 976 , 999 12 (9th Cir. 2017). To establish an entitlement to mandatory preliminary injunctive relief, 13 the plaintiff must show that “the merits of the case are not ‘doubtful’” and that, in the 14 absence of the requested relief, “‘extreme or very serious damage will result’ that is not 15 ‘capable of compensation in damages.’” Id. (quoting Marlyn Nutraceuticals, Inc. v. 16 Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009)). A mandatory 17 preliminary injunction “should not be issued unless the facts and law clearly favor the 18 moving party.” Dahl v. HEM Pharms. Corp., 7 F.3d 1399 , 1403 (9th Cir. 1993). 19 Additionally, under the Prison Litigation Reform Act, injunctive relief must be 20 narrowly drawn and be the least intrusive means necessary to correct the harm. 18 21 U.S.C. § 3626 (a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987, 999 (9th 22 Cir. 2000). 23 “The urgency of obtaining a preliminary injunction necessitates a prompt 24 determination” and makes it difficult for a party to procure supporting evidence in a form 25 that would be admissible at trial. Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th 26 Cir. 1984). As a result, “a preliminary injunction is customarily granted on the basis of 27 procedures that are less formal and evidence that is less complete than in a trial on the 28 merits.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). In its determination on - 12 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 13 of 40 1 a motion for a preliminary injunction, “a court may properly consider evidence that 2 would otherwise be inadmissible at trial.” Cherokee Inc. v. Wilson Sporting Goods Co., 3 No. CV 15-04023 BRO (Ex), 2015 WL 3930041 , at *3 (C.D. Cal. June 25, 2015); see 4 Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009) (district court did not abuse its 5 discretion by considering “unverified client complaints” and the plaintiff’s counsel’s 6 interested declaration when it granted a preliminary injunction); Flynt Distrib. Co., 734 7 F.2d at 1394 (the district court has discretion to rely on hearsay statements when deciding 8 whether to issue a preliminary injunction). A court may also consider evidence or 9 developments that postdate the pleadings. Farmer v. Brennan, 511 U.S. 825, 846 (1994). 10 When evaluating the merits of a preliminary injunction motion, a court’s factual 11 findings and legal conclusions are not binding at trial on the merits. Univ. of Tex., 451 12 U.S. at 395. 13 B. Preliminary Injunctive Relief Related to Visual Strip Searches and 14 Suicide Watch Observation (Doc. 27) 15 On May 26, 2023, Plaintiff filed a Motion for Preliminary Injunction (“May 26 PI 16 Motion”) (Doc. 27),11 in which she makes the following allegations. Plaintiff is a 17 preoperative transgender woman with well-developed breasts. (Id. at 3.) On May 6, 18 2023, Plaintiff emailed the TEC and filed a PREA complaint against a lieutenant after he 19 forced her to walk in her panties in front of a housing tier of male prisoners. (Id. at 4.) 20 Early the next morning, Plaintiff was taken to suicide watch—although she informed 21 officials she was not suicidal—and Lieutenant Deleon slapped and choked her, forced her 22 to remove her clothes, and subjected her to a strip search in front of male officers and 23 prisoners. (Id. at 4–5.) Plaintiff was left naked in a suicide cell for nearly 24 hours in 24 view of other prisoners, and the experience was emotionally and mentally traumatizing. 25 (Id. at 5.) Plaintiff requests an order prohibiting Defendant from (1) performing cross26 gender strip searches of Plaintiff, (2) allowing cisgender male prisoners and staff to view — 27 — — 11 — Plaintiff sought a temporary restraining order (Doc. 27), but the Court denied the 28 request for a temporary restraining order and construed Plaintiff’s May 26, 2023 Motion as seeking a preliminary injunction (Doc. 60). - 13 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 14 of 40 1 her on suicide watch, and (3) failing to enforce PREA’s antiretaliation regulation. (Id. at 2 6–7.) 3 In response, Defendant states that, on May 7, 2023, Lieutenant Deleon placed 4 Plaintiff on suicide watch after receiving a copy of an email Plaintiff had sent to the TEC 5 the day before. (Doc. 64 at 7–8; Doc. 62-2 at 9–10, Deleon Decl. ¶¶ 29–30 (in part).)12 6 In her May 6, 2023 email, Plaintiff reported that Officer Vasquez, a defendant in another 7 civil rights case brought by Plaintiff, had just informed two prisoners in the SHU that 8 Plaintiff had snitched on him. (Doc. 64-2 at 22.) Plaintiff explained that Vasquez was 9 the officer who had given Plaintiff a razor three years before, which resulted in Plaintiff 10 cutting herself, but that, despite that incident, prisoners were still getting razors and 11 hurting themselves. (Id.) Plaintiff also reported that another prisoner submitted a PREA 12 complaint in 2020 and had not been seen or interviewed about his complaint in three 13 years. (Id.) Plaintiff complained that nothing ever changes, the TEC does not investigate 14 or do anything, and BOP does not follow its own policies. (Id.) Plaintiff wrote that the 15 TEC will not hold anyone responsible and that: 16 blood drips all over this SHU, and will continue to drop until someone dies. 17 Will a suicide wake you people up into taking action? What exactly has to happen? Ten suicides? I mean, this is just stupid in my view, that this stuff 18 happens over and over again and you people in Washington exhibit willful 19 blindness to it . . . 20 I look forward to the trials coming up, I really do, because I cannot wait for — 21 — — 12 — Lieutenant Deleon avers that Plaintiff’s email was forwarded to the institution by Dr. 22 Ashley Noble, National Policy Coordinator and a member of the TEC. (Doc. 64-2 at 9, Deleon Decl. ¶ 29.) Deleon avers that Dr. Noble believed one sentence in Plaintiff’s 23 email caused concern for possible self-harm, and that as result of the email and a phone call with Dr. Noble, Deleon placed Plaintiff on suicide watch. (Id. at ¶¶ 29–30.) 24 Defendant submits a copy of Plaintiff’s email; however, the face of the email shows only that it was “FROM 16267064 Pinson, Jeremy Vaughn” and “TO: Transgender Executive 25 Council”—there is no indication that the email was forwarded by Dr. Noble, nor is there any message from Dr. Noble regarding concerns about the email. (Id. at 22.) Defendant 26 does not submit a declaration from Dr. Noble, there is no medical record documenting Dr. Noble’s concerns about Plaintiff’s email or mentioning a telephone call from Dr. 27 Noble, and there is no medical record dated May 7, 2023 related to Plaintiff’s placement on suicide watch. (See Doc. 66 (sealed medical records).) Thus, even under the relaxed 28 standards applied in a preliminary injunction analysis, Deleon’s statements as to Dr. Noble’s beliefs and concerns are unsupported and unreliable. - 14 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 15 of 40 1 the nightmare shit-show that is this institution to be aired out in a federal 2 courthouse for the public, the media, and the court to finally see. Doing nothing is not a problem solving tool guys . . . . — 3 — (Id.) — 4 — 5 Deleon avers that he did not punch, slap, hit, or otherwise strike Plaintiff when 6 placing her on suicide watch, nor did he make any derogatory statements to her or laugh 7 at her. (Doc. 64-2 at 10, Deleon Decl. ¶ 31.) Deleon states that no prisoner observed 8 Plaintiff naked or semi-naked as part of the suicide watch; rather Plaintiff was taken to a 9 private room, and she was placed in a suicide safety smock that provides coverage. (Id.) 10 At the same time, however, Deleon avers that he does not recall who conducted the visual 11 search of Plaintiff, whether Plaintiff requested to be searched by a female, or whether 12 Plaintiff made any statements to him during the interaction on May 7, 2023. (Id. ¶¶ 32– 13 33.) 14 There are no medical records from May 7, 2023. (See Doc. 66.) Other medical 15 records show that, in the early morning of May 8, 2023, Plaintiff was seen by chief 16 psychologist James Hayden, who assessed that Plaintiff was a low risk for suicide and 17 that suicide watch was not warranted at the time. (Id. at 66.) Dr. Hayden documented 18 the reasons for removing Plaintiff from suicide watch, including that Plaintiff did not 19 present with any risk factors for self-harm or suicide, she did not engage in self-harm 20 behavior or make threats of self-harm or suicide, and she was future-oriented and focused 21 on her legal work. (Id. at 60.) Dr. Hayden noted that the references in Plaintiff’s email to 22 self-harm and “blood” dripping all over SHU “were descriptions of her past behavior and 23 the context for these references in her e-mail was her lawsuits against the Bureau.” (Id. at 24 59.) 25 In opposing Plaintiff’s May 26 PI Motion, Defendant argues (1) there is not a 26 sufficient nexus between Plaintiff’s requests for injunctive relief and the claims in the 27 SAC; (2) Plaintiff is not likely to succeed on the merits of her claims because BOP 28 policies regarding transgender prisoners are substantially related to penological interests; - 15 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 16 of 40 1 (3) Plaintiff has not met the remaining factors required for a preliminary injunction; and 2 (4) Plaintiff’s request for relief is not narrowly tailored. (Doc. 64.) 3 With respect to Plaintiff’s request that female officers conduct any strip searches 4 of Plaintiff, Defendant submits evidence showing that, under BOP policy guidelines, for 5 purposes of a visual search, which includes all body surfaces and body cavities, prisoners 6 are searched in accordance with the gender housed at the institution. (Doc. 64 at 5 n.3; 7 Doc. 64-2 at 7, Deleon Decl. ¶ 19.) However, a transgender prisoner may submit an 8 Inmate Request to Staff to the Warden for an exception to the requirement that the 9 prisoner be searched in accordance with the gender housed at the institution. (Doc. 64-2 10 at 7, Deleon Decl. ¶¶ 20–21.) Upon receipt of such a request, the Warden consults with 11 Health Services, Psychology Services, Unit Management, and Correctional Services, and 12 if the request is approved, an exception will be described in a memorandum, 13 communicated to staff, reflected in SENTRY (the BOP database), and noted on the 14 prisoner’s identification badge. (Id. ¶¶ 20–22.) If the request is denied, the prisoner may 15 request a review by the TEC through the BOP’s Administrative Remedy Program. (Id. 16 ¶ 21.) Defendant asserts that Plaintiff has not made a request to the Warden to be placed 17 on the female-only visual search list. (Id. ¶ 32.) 18 In her Reply, Plaintiff avers that, prior to May 7, 2023, she had submitted a 19 female-only visual search request to Warden Damon Colbert, who granted the request. 20 (Doc. 77-1 at 1–2, Pl. Decl. ¶ 6.) Plaintiff avers that she was never provided notice that 21 Warden Mark Gutierrez removed Plaintiff from the female-only visual search list. (Id.) 22 Plaintiff also avers that the suicide smock she was given was too small for her body, and 23 Deleon and other officers refused to provide a larger sized smock; therefore, she was 24 forced to remain naked and sleep naked in the suicide cell while being watched by two 25 prisoner monitors, both of whom were known to Plaintiff and are convicted sex 26 offenders. (Id. ¶¶ 3–5.) 27 .... 28 .... - 16 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 17 of 40 1 1. Nexus Between Complaint and Injunction Request 2 As discussed above, this Court does not have authority to issue injunctive relief 3 when the injunction deals with a matter lying wholly outside the issues in the suit. See 4 Pac. Radiation Oncology, 810 F.3d at 633 . Plaintiff’s May 26 PI Motion seeks to require 5 female officers to strip search Plaintiff and to prohibit cisgender male prisoners and staff 6 from viewing her on suicide watch. (Doc. 27 at 6–7.) Plaintiff’s SAC sets forth Eighth 7 Amendment claims arising from mental health treatment, or the lack thereof, related to 8 her transgender status and gender dysphoria, and the accompanying difficulties that result 9 from Defendant’s alleged failure to adequately treat her, protect her from harm, and 10 properly house her. See Edmo v. Corizon, 935 F.3d at 786 (9th Cir. 2019) (serious 11 medical needs under the Eighth Amendment “can relate to physical, dental and mental 12 health”). Both Plaintiff’s May 26 PI Motion and her SAC relate to Plaintiff’s status as a 13 transgender prisoner and to conditions and treatment that affect her mental health. The 14 Court finds it has authority to consider Plaintiff’s injunctive requests for female visual 15 strip searches and female suicide watch observers, as the requests are sufficiently related 16 to the Eighth Amendment claims asserted in the SAC. However, as discussed in Section 17 V(C), infra, Plaintiff’s request that the BOP be required to enforce PREA’s anti18 retaliation provision does not bear a sufficient nexus to the remaining claims in Plaintiff’s 19 SAC, and the Court is therefore without authority to grant that request. 20 2. Narrowly Tailored Request 21 Defendants argue that requiring female-only visual strip searches and preventing 22 male staff and prisoners from viewing Plaintiff on suicide watch would significantly 23 hamper the BOP’s ability to conduct searches for safety and to address suicidal crises that 24 Plaintiff may experience in the future. (Doc. 64 at 15–16.) 25 Plaintiff’s request for female-only visual searches is a specific, narrowly tailored 26 request and one that Defendants, according to their own evidence, can and do 27 accommodate in certain situations. As such, the Court rejects Defendants’ argument that 28 accommodating such a request would significantly hamper the BOP’s ability to conduct - 17 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 18 of 40 1 searches for safety. 2 Plaintiff’s request that only female staff and prisoners view her while on suicide 3 watch, however, is not a narrowly tailored request. The PLRA requires that, in 4 fashioning prospective relief with respect to prison conditions, “[t]he court shall give 5 substantial weight to any adverse impact on public safety or the operation of a criminal 6 justice system caused by the relief.” 18 U.S.C. 3626(a)(1). As Defendants argue, 7 continual monitoring of a prisoner considered suicidal serves an important penological 8 interest. (See Doc. 64 at 12–13.) The BOP’s Program Statement governing suicide 9 prevention states that a prisoner believed to be suicidal should be under continuous 10 observation and that, for all suicide watches, there must be observation, which may be 11 conducted by prisoners who are specially selected and trained as prisoner observers.13 12 Because there are no female prisoners available to be prisoner observers in Plaintiff’s 13 facility, Plaintiff’s request is that only female staff view her on suicide watch.14 When 14 trying to balance the need to fairly accommodate Plaintiff’s right to adequate mental 15 health care as it relates to her transgender status and any adverse impact on the operations 16 of the BOP, the Court finds that an order requiring only female staff members to view 17 Plaintiff while on suicide watch would interfere with staffing and operations. Depending 18 on the number of female staff members employed at Plaintiff’s institution of 19 confinement, such an order may greatly interfere with work schedules and the 20 administration of the facility. Thus, Plaintiff seeks a significantly intrusive form of relief 21 that the Court is unable to award at this time. 22 Moreover, there is a less-intrusive remedy that would address the harm alleged by 23 Plaintiff. Much of the harm and trauma Plaintiff allegedly suffered when on suicide 24 watch in May 2023 appears to stem from being housed in a suicide cell while practically 25 naked and viewed by two male prisoner observers. The record shows that a suicide 26 13 See BOP Program Statement No. 5324.08, Suicide Prevention Program, https://www.bop.gov/policy/progstat/5324_008.pdf (last visited Jan. 25, 2024). 27 14 Plaintiff filed her Motion while housed at USP-Tucson and has since been transferred to SAU-Allenwood. Both USP-Tucson and SAU-Allenwood are male prisons; 28 accordingly, no female prisoners are available to serve as prisoner observers at either institution. - 18 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 19 of 40 1 safety smock is to be provided to prisoners on suicide watch. (See Doc. 64-1, Deleon 2 Decl. ¶¶ 30–31 & n.6.) A suicide smock—if appropriately sized—would alleviate the 3 very harm Plaintiff suffered. (See Doc. 64-1, Deleon Decl. ¶¶ 30–31 & n.6.) Although 4 Plaintiff alleges that, on May 7, 2023, she was given a smock that was too small and 5 therefore did not provide coverage, her allegations support that this was an isolated 6 incident involving BOP personnel who were acting contrary to BOP policy. 7 3. Female-Only Visual Search 8 Plaintiff’s remaining claim for injunctive relief in the May 26 PI Motion is her 9 request for an order for female-only visual searches. As stated, this request for relief 10 relates to Plaintiff’s underlying Eighth Amendment mental health care claim that the 11 treatment and conditions she is subject to in a male prison negatively affect her mental 12 health and exacerbate her gender dysphoria. 13 a. Likelihood of Success on Merits 14 To support a medical care claim under the Eighth Amendment, a prisoner must 15 demonstrate “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 16 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are 17 two prongs to the deliberate-indifference analysis: an objective standard and a subjective 18 standard. First, a prisoner must show a “serious medical need.” Id. (citations omitted). 19 A “‘serious’ medical need exists if the failure to treat a prisoner’s condition could result 20 in further significant injury or the ‘unnecessary and wanton infliction of pain.’” 21 McGuckin v. Smith, 974 F.2d 1050 , 1059–60 (9th Cir. 1992), overruled on other grounds 22 by WMX Techs., Inc. v. Miller, 104 F.3d 1133 , 1136 (9th Cir. 1997) (en banc) (internal 23 citation omitted). As stated, “[s]erious medical needs can relate to ‘physical, dental and 24 mental health.’” Edmo, 935 F.3d at 785. 25 Second, a prisoner must show that the defendant’s response to that need was 26 deliberately indifferent. Jett, 439 F.3d at 1096 . “Prison officials are deliberately 27 indifferent to a prisoner’s serious medical needs when they ‘deny, delay or intentionally 28 interfere with medical treatment.’” Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. - 19 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 20 of 40 1 1990) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). 2 Deliberate indifference may also be shown where prison officials fail to respond to a 3 prisoner’s pain or possible medical need. Jett, 439 F.3d at 1096 . “In deciding whether 4 there has been deliberate indifference to an inmate’s serious medical needs, [courts] need 5 not defer to the judgment of prison doctors or administrators.’” Colwell v. Bannister, 763 6 F.3d 1060 , 1066 (9th Cir. 2014) (quoting Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th 7 Cir. 1989)). 8 Medical records submitted by Defendant show that Plaintiff has been diagnosed 9 with gender dysphoria. (Doc. 66 at 6, 8.) The Ninth Circuit has recognized that gender 10 dysphoria is a sufficiently serious medical need that implicates the Eighth Amendment. 11 Edmo, 935 F.3d at 785. Plaintiff must therefore show that Defendant’s response to her 12 serious medical need exhibits deliberate indifference; specifically, that visual strip 13 searches performed by male officers constitutes deliberate indifference to her gender 14 dysphoria. 15 The Ninth Circuit has found that “incarcerated prisoners retain a limited right to 16 bodily privacy.” Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir. 1988). “Shielding 17 one’s unclothed figure from the view of strangers, particularly strangers of the opposite 18 sex, is impelled by elementary self-respect and personal dignity.” Id. Courts have 19 recognized the “frightening and humiliating invasion” occasioned by a strip search “even 20 when conducted with all due courtesy.” Way v. Cnty. of Ventura, 445 F.3d 1157 , 1160 21 (9th Cir. 2006) (internal quotation marks omitted); Byrd v. Maricopa Cnty. Sheriff’s 22 Dep’t, 629 F.3d 1135, 1143 (9th Cir. 2011). While some visual body cavity searches of 23 prisoners may be reasonable, others can “be excessive, vindictive, harassing, or unrelated 24 to any legitimate penological interest.” Michenfelder, 860 F.2d at 322 . The Seventh 25 Circuit has expressed that “one of the clearest forms of degradation in Western Society is 26 to strip a person of his clothes. The right to be free from strip searches and degrading 27 body inspections is thus basic to the concept of privacy.” Canedy v. Boardman, 16 F.3d 28 183, 185 (7th Cir. 1994). And it is “a greater invasion to have one’s naked body viewed - 20 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 21 of 40 1 by a member of the opposite sex.” Id. 2 An Eighth Amendment violation has been found where female prisoner plaintiffs, 3 found to be particularly vulnerable to a severe psychological injury from the search, are 4 subjected to random cross-gender clothed body searches unrelated to prison security. 5 Jordan v. Gardner, 986 F.2d 1521 , 1525–28 (9th Cir. 1993) (finding cross-gender body 6 search policy constituted unnecessary “infliction of pain” under the Eighth Amendment 7 where women prisoners had “shocking histories of verbal, physical, and, in particular, 8 sexual abuse” by men). The Ninth Circuit and numerous other circuit courts have held 9 that cross-gender strip searches involving contact, absent emergency circumstances, are 10 unreasonable under the Fourth Amendment. See Byrd v. Maricopa Cnyt. Sheriff’s Dep’t, — 11 — 629 F.3d 1135 , 1146–47 (9th Cir. 2011); Moore v. Carwell, 168 F.3d 234, 235 (5th Cir. 12 1999); Lee v. Downs, 641 F.2d 1117, 1120 (4th Cir. 1981). 13 The Supreme Court has directed courts that review strip searches in the prison 14 context to consider and balance the scope of the intrusion, the manner in which the search 15 is conducted, the justification for initiating it, and the place in which the search is 16 conducted. Bell v. Wolfish, 441 U.S. 520, 559 (1979). Absent extenuating 17 circumstances, strip searches should be conducted in private. See Amaechi v. West, 237 18 F.3d 356, 364 (4th Cir. 2001) (“we have repeatedly emphasized the necessity of 19 conducting a strip search in private”); Michenfelder, 860 F.3d at 333 (noting that strip 20 searches conducted in a private cell supported finding of reasonableness). 21 The Court has not found a Ninth Circuit case specifically addressing whether 22 transgender female prisoners have a right to be strip searched by female officers only. 23 But Plaintiff cites to Doe v. Massachusetts Department of Corrections, which granted an 24 injunction requiring the defendant prison officials to utilize female corrections officers 25 whenever feasible when conducting strip searches of the plaintiff—a transgender female 26 prisoner. No. 17-12255-RGS, 2018 WL 1156227 (D. Mass. March 5, 2019). Defendant 27 insists that reliance on Doe is misplaced because the relief granted in Doe was “much 28 narrower” than Plaintiff’s request for “the use of female officers in every instance.” - 21 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 22 of 40 1 (Doc. 64 at 14.) The plaintiff in Doe specifically requested, among other relief, an order 2 to “enjoin Defendants from using male correctional officers to conduct strip searches of 3 Jane Doe, except in exigent circumstances[.]” 2018 WL 1156227 , at *1, n.2. This 4 request is virtually identical to Plaintiff’s request, which is for an order to enjoin 5 Defendants “from performing cross-gender strip searches of Plaintiff.” (Doc. 27 at 6.) 6 Doe shows that an injunction enjoining prison officials from using male officers to 7 conduct strip searches of transgender female prisoners is not novel. 8 Plaintiff also cites to the WPATH Standards of Care to support that a component 9 of treatment under WPATH includes “social transitioning.” (Doc. 77 at 6.) “Most courts 10 agree” that the WPATH Standards of Care “are the internationally recognized guidelines 11 for the treatment of individuals with gender dysphoria.” Endo, 935 F.3d at 769 12 (quotation omitted). Social transitioning refers to “the ability to live consistently with 13 one’s gender identity,” such as dressing and grooming accordingly, using pronouns for 14 one’s gender identity, and other accommodations. Keohane v. Fla. Dep’t of Corrs. 15 Secretary, 952 F.3d 1257 , 1263–64 (11th Cir. 2020). 16 Plaintiff is diagnosed with and takes hormones for gender dysphoria, she identifies 17 as female, Defendant is aware of her diagnosis and female gender identity, and she avers 18 that a male-conducted visual strip search was emotionally traumatizing for her. (Doc. 27 19 at 5.) Considering the holdings in Edmo, Jordan, and Doe, and pursuant to the WPATH 20 Standards of Care, an accommodation in the form of utilizing female officers for visual 21 strip searches of Plaintiff is reasonable in the circumstances, and Defendant’s failure to 22 make such an accommodation may rise to deliberate indifference. 23 b. Irreparable Injury 24 The second Winter factor requires Plaintiff to demonstrate that, absent an 25 injunction, she will be exposed to irreparable harm. Caribbean Marine Servs. Co., Inc. v. 26 Baldrige, 844 F.2d 668, 674 (9th Cir. 1988); see Winter, 555 U.S. at 22 . “[T]here must 27 be a presently existing threat of harm, although injury need not be certain to occur.” 28 Villaneuva v. Sisto, CIV S-06-2706 LKK EFB P, 2008 WL 4467512 , at *3 (E.D. Cal. - 22 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 23 of 40 1 Oct. 3, 2008) (citing FDIC v. Garner, 125 F.3d 1272 , 1279–80 (9th Cir. 1997)). 2 Speculative injury is not irreparable injury sufficient for a preliminary injunction. 3 Caribbean Marine, 844 F.2d at 674 . To support a mandatory preliminary injunction, a 4 plaintiff must demonstrate ongoing harm or the present threat of irreparable injury, not a 5 past injury. See Conn. v. Mass., 282 U.S. 660, 674 (1931) (an injunction is only 6 appropriate “to prevent existing or presently threatened injuries”); Caribbean Marine, — 7 — 844 F.2d at 674 . 8 Plaintiff identifies as female and is continuing her gender dysphoria treatment and 9 social transitioning. Plaintiff alleges that being subjected to male-conducted visual strip 10 searches is traumatizing. (Doc. 27 at 5.) Meanwhile, Defendant’s evidence establishes 11 that, pursuant to regulation, visual strip searches of prisoners are conducted by BOP staff 12 in numerous instances: when there is a reasonable belief that a prisoner is concealing 13 contraband; when a good opportunity for concealment has occurred; upon placement in 14 the SHU; when leaving the institution; upon re-entry into the institution; and, as 15 demonstrated here, upon placement on suicide watch. (Doc. 64-2 at 6–7, Deleon Decl. 16 ¶ 18 (citing 28 C.F.R. 552.11(c)(1)).). It is not speculative that Plaintiff will be subject to 17 more visual strip searches while in BOP custody. Thus, as long as Plaintiff is subject to 18 searches by male officers, there exists a present threat of irreparable injury.15 19 c. Balance of Equities and Public Interest 20 Courts “must balance the competing claims of injury and must consider the effect 21 on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 22 24 (quotation marks omitted). Because Defendant already provides an exception to 23 transgender prisoners allowing for female-only visual strip searches, Defendant cannot 24 argue that it will suffer harm if Plaintiff’s request for injunctive relief is granted. 25 Conversely, without an injunction, Plaintiff risks being subjected to male officer searches 26 and the accompanying emotional and mental trauma those searches cause due to her — 27 — — 15 — Plaintiff’s transfer to SAU-Allenwood does not diminish the threat of irreparable injury 28 from male-officer searches, because SAU-Allenwood, like USP-Tucson, is a male institution. - 23 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 24 of 40 1 gender dysphoria. Accordingly, the balance of equities tips sharply in Plaintiff’s favor. 2 Lastly, “it is always in the public interest to prevent the violation of a party’s 3 constitutional rights.” Porretti, 11 F.4th at 1047. And “the public has a strong interest in 4 the provision of constitutionally-adequate health care to prisoners.” McNearney, 2012 5 WL 3545267 , at *16 (quoting Flynn v. Doyle, 630 F. Supp. 2d 987, 993 (E.D. Wis. 6 2009)). Here, it is in the public interest to ensure that Plaintiff receives constitutionally 7 adequate mental health care and accommodations for her gender dysphoria. 8 4. Additional Briefing 9 As stated, Defendant has a process in place for transgender prisoners to request to 10 be searched by a staff member of the prisoner’s identified gender. (Doc. 64-2 at 7, 11 Deleon Decl. ¶ 20.) In her Reply, Plaintiff alleges that she had previously been granted 12 such an exception, but Warden Gutierrez canceled it. The Court will stay a ruling on 13 Plaintiff’s May 26 PI Motion until the question of Plaintiff’s status for an exception for 14 female-officer searches has been further briefed. Defendant will be directed to file a 15 Response explaining whether Plaintiff was previously granted an exception for female16 officer searches, and, if so, why the exception was canceled even though Plaintiff’s 17 transgender status has not changed. Defendant shall also address in the Response 18 whether and how Plaintiff’s transfer to SAU-Allenwood has affected her status for an 19 exception for female-officer searches. 20 C. Preliminary Injunctive Relief Related to Retaliation (Docs. 27, 31, 21 62) 22 Plaintiff requests injunctive relief requiring the BOP to enforce PREA’s anti23 retaliation regulation and to fully investigate Plaintiff’s claims of retaliation and witness 24 tampering. (Doc. 27 at 6; Doc. 31 at 57-58; Doc. 62 at 2.) As stated above, although 25 Plaintiff alleged in former Count Four of the SAC that Defendants conspired to retaliate 26 against her for filing lawsuits (Doc. 14 at 26-33), the Court dismissed Count Four on 27 screening (Doc. 23 at 6). The remaining claims of the SAC do not allege retaliation. 28 Plaintiff’s requested injunctive relief related to retaliation and witness tampering by BOP - 24 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 25 of 40 1 staff does not bear a sufficient nexus to Plaintiff’s remaining Eighth Amendment claims 2 for inadequate medical care and threat to safety/failure to protect, or to her Fourteenth 3 Amendment Equal Protection claim. See Pac. Radiation Oncology, 810 F.3d at 633 . If 4 Plaintiff seeks to add a retaliation claim for injunctive relief under 28 U.S.C. § 1331 , she 5 must move for leave to amend or supplement her SAC.16 6 D. Preliminary Injunctive Relief Related to Access to the Courts (Docs. 7 31, 35) 8 In her Motion for Temporary Restraining Order to Prevent Further Violations of 9 the First and Fifth Amendments,17 Plaintiff alleges that on June 12, 2023, Mailroom 10 Officer Felix came to Plaintiff’s cell to deliver legal mail and a photocopy of 11 correspondence from a news reporter. (Doc. 31 at 1–2.) Felix asked Plaintiff what she 12 was going to say to the media about him and USP-Tucson, to which Plaintiff responded 13 that she would tell the truth, it was none of Felix’s business, and Felix could read it when 14 the article is published. (Id. at 2.) Felix then said to Plaintiff, “oh yeah, well you just got 15 your last piece of mail, period,” and Felix refused to accept or mail Plaintiff’s outgoing 16 legal mail. (Id.) 17 Plaintiff asserts that she has been denied the right to assistance; she has no ability 18 to hire an expert witness; her ability to litigate this matter has been frustrated or impeded; 19 and she has been denied access to legal materials, a law library, a photocopier, a copy of 20 the Court’s Local Rules, and her legal files and papers. (Id. at 5–9, 11–12.) Plaintiff 21 states that, without legal access, she is unable to properly draft motions and complaints. 22 16 Plaintiff cannot seek monetary damages for a First Amendment retaliation claim pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). See 23 Egbert v. Boule, 596 U.S. 482 , 498 (2022). However, she can still seek injunctive relief pursuant to 28 U.S.C. § 1331 . See Simmat v. United States Bureau of Prisons, 413 F.3d 24 1225, 1232 (10th Cir. 2005) (“Section 1331 provides jurisdiction for the exercise of the traditional powers of equity in actions arising under federal law. No more specific 25 statutory basis is required”); see also Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (“unlike the Bivens remedy, which we have never considered a proper vehicle for 26 altering an entity’s policy, injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally”). 27 17 The Court finds that Plaintiff has not met the requirement for a temporary restraining order under Rule 65(b) of the Federal Rules of Civil Procedure, as she does not indicate 28 any effort to give notice to Defendant or state why notice should not be required. The Court construes Plaintiff’s Motion as seeking a preliminary injunction. - 25 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 26 of 40 1 (Id. at 14–15, 18.) Plaintiff argues she has suffered actual injury as demonstrated by the 2 dismissal of her original and First Amended Complaints, the denial of her request for 3 counsel, and the denials of her prior preliminary injunction motions. (Id. at 8, 14.) 4 Plaintiff asks the Court to issue injunctive relief requiring the BOP to provide her with 5 the means to identify, locate, and contact potential expert witnesses; provide her with at 6 least two hours of law library time twice per week; provide her with access to a 7 photocopier, pen, paper, envelopes, and stamps as needed; and cease interfering with her 8 ability to collect witness declarations and evidence. (Id. at 57.) Plaintiff requests an 9 evidentiary hearing and renews her request for counsel. (Id. at 42–57.)18 10 In her Motion for Preliminary Injunction to Protect Access to the Courts, Plaintiff 11 asserts that her outgoing mail—except for certified or legal mail—is not being mailed 12 out. (Doc. 35 at 1.) In her declaration supporting the Motion, Plaintiff avers that, 13 beginning in May 2023, she began receiving letters from individuals to whom Plaintiff 14 had written but who had not received her letters, as evidenced by their correspondence. 15 (Doc. 35-1 at 1, Pl. Decl. ¶ 2.) Plaintiff attaches a portion of a letter from an individual 16 who states she had not heard from Plaintiff. (Id., Attach. A.) Plaintiff also avers that, on 17 May 27, 2023, she placed into the mail a prepaid-postage envelope containing a Notice of 18 Appeal that appealed this Court’s denial of Plaintiff’s preliminary injunctions but that, to 19 Plaintiff’s knowledge, was not mailed to the Court. (Id. ¶ 4.) Plaintiff states that other 20 mail she received, including from the Brennan Center for Justice, did not include 21 attachments that were mentioned in the correspondence. (Id. ¶ 5, Attach. B.) Plaintiff 22 avers that she never received a legal book she purchased from Prison Legal News and 23 that legal mail sent to her has been opened outside her presence and photocopied. (Id. 24 18 In this Motion, Plaintiff also requests that the BOP be required to investigate her claims of retaliation, that the BOP be required to use its female procedures for her, that the BOP 25 be required to begin her transition to a female facility, and that the BOP cease isolating her. (Id. at 57-58.) The Court addresses the requested injunctive relief related to 26 retaliation in Section V(C), supra. The Court addresses the requested relief related to female procedures and transition to a female facility in Section V(F), infra. The Court 27 addresses the requested relief related to isolated housing in Section V(E), infra. Plaintiff’s request for an evidentiary hearing is denied. Plaintiff’s request for 28 appointment of counsel is taken under advisement and will be resolved when the Court issues a ruling on her Renewed Motion for Appointment of Counsel (Doc. 111). - 26 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 27 of 40 1 ¶¶ 6, 8.) And Plaintiff avers that mail sent to her from the U.S. Attorneys’ Office in 2 Oklahoma on June 13, 2023, was not received by her until July 14, 2023. (Id. ¶ 16.) 3 Plaintiff requests an injunction requiring the BOP to immediately cease withholding the 4 envelope to this Court that contains Plaintiff’s Notice of Appeal; cease tampering with 5 and withholding Plaintiff’s general correspondence, publications, and books sent to 6 Plaintiff by the Brennan Center for Justice; cease opening legal mail outside Plaintiff’s 7 presence; cease prohibiting her access to prisoner witnesses; and cease unreasonably 8 limiting her telephone access to attorneys. (Doc. 35 at 20–21.)19 9 1. Legal Standard 10 Although a court generally may not issue an injunction for relief on claims not 11 pled in the operative complaint, an exception arises when the injunctive relief sought is 12 related to a prisoner’s access to the court. See Prince v. Schriro, et al., CV 08-129913 PHX-SRB, 2009 WL 1456648 , at *4 (D. Ariz. May 22, 2009) (where the relief sought 14 relates to a prisoner’s access to the court, “a nexus between the preliminary relief and the 15 ultimate relief sought is not required[,]” and the court need not consider the merits of the 16 underlying complaint) (citing Diamontiney v. Borg, 918 F.2d 793, 796 (9th Cir. 1990)). 17 The constitutional right of access to the courts encompasses a right to litigate 18 without active interference. See Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011), 19 overruled on other grounds by Richey v. Dahne, 807 F.3d 1202 , 1209 n.2 (9th Cir. 2015). 20 To support an active interference claim, a prisoner must allege facts showing that 21 officials’ actions hindered the ability to litigate and that, as a result, the prisoner suffered 22 an actual injury. Silva, 658 F.3d at 1102 ; see Lewis v. Casey, 518 U.S. 343, 349 (1996) 23 (to maintain an access-to-the-courts claim, a prisoner must show an “actual injury” 24 resulting from the defendant’s actions). Actual injury must be “actual prejudice . . . such 25 as the inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348– 26 49. — 27 — — 19 — Plaintiff also requests in this Motion an injunction requiring the BOP to cease isolating 28 her in the USP-Tucson SHU. (Doc. 31 at 20–21.) That request is addressed in Section V(E), infra. - 27 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 28 of 40 1 2. Discussion 2 It appears Plaintiff’s transfer to SAU-Allenwood may render moot her injunctive 3 relief requests related to access to the courts, as the requests are premised on practices 4 occurring at USP-Tucson. Regardless, Plaintiff is not entitled to the requested relief 5 because she has not shown actual injury. 6 Because prisoners do not have a “freestanding right to a law library or legal 7 assistance, an inmate cannot establish relevant actual injury simply by establishing that 8 his prison’s law library or legal assistance program is subpar.” Lewis, 518 U.S at 351. 9 Rather, the inmate must “demonstrate that the alleged shortcomings in the library or legal 10 assistance program hindered [her] efforts to pursue a legal claim.” Id. 11 Dismissal with leave to amend of Plaintiff’s original Complaint and the First 12 Amended Complaint are not evidence of actual injury, because Plaintiff was given the 13 opportunity to correct deficiencies and again present her claims. Nor does denial of 14 Plaintiff’s motions for injunctive relief constitute actual injury. When determining 15 whether a plaintiff states a claim for relief or demonstrates entitlement to a preliminary 16 injunction, the Court looks at the facts alleged; no legal citations are necessary to support 17 a constitutional or federal claim. See Alvarez v. Hill, 518 F.3d 1152 , 1157–59 (9th Cir. 18 2008) (“[a] complaint need not identify the statutory or constitutional source of the claim 19 raised”); Huftile v. Miccio-Fonseca, No. CIV-S-1522 FCD DAD P, 2009 WL 3011426 , 20 at *8 (E.D. Cal. Sept. 17, 2009) (“in seeking prospective injunctive relief, plaintiff must 21 allege facts that if proven would establish that [s]he is likely to suffer future injury if 22 defendant is not so enjoined”) (emphasis added) (citing Hodgers-Durgin v. De La Vina, — 23 — 199 F.3d 1037, 1042 (9th Cir. 1999)). Accordingly, lack of access to a law library or to 24 legal materials does not affect a plaintiff’s ability to present relevant facts in support of a 25 claim or a request for injunctive relief. 26 Further, the prior denial of appointment of counsel does not constitute actual 27 injury. There is no constitutional right to the appointment of counsel in a civil case. Aidr 28 Int., LLC v. Starr Indem. & Liab. Co., 994 F.3d 1032 , 1038–39 (9th Cir. 2021). - 28 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 29 of 40 1 Appointment of counsel under 28 U.S.C. § 1915 (e)(1) is required only when “exceptional 2 circumstances” are present, a consideration that takes into account a plaintiff’s ability to 3 articulate her claims pro se. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). The 4 docket in this matter shows that Plaintiff has been able to present her claims to the Court, 5 and the Court found she sufficiently stated constitutional claims in her SAC. In addition, 6 Plaintiff has filed numerous motions; has responded to Defendant’s motions; and has 7 presented evidence in the form of declarations, BOP policies, federal regulations, 8 materials copied from LexisNexis, BOP memoranda, and medical records. Even with the 9 limitations imposed on Plaintiff as a federal prisoner, she has shown an ability to 10 articulate her claims and litigate this action. 11 Plaintiff alleges that her Notice of Appeal, which was placed in the mail on May 12 27, 2023, was never sent to the Court. Plaintiff states that this Notice of Appeal was an 13 appeal of the denial of injunctive relief in the Court’s Order at Doc. 23 “and all other 14 denials of Motions seeking preliminary injunctions[.]” (Doc. 35-1 at 1, Pl. Decl. ¶ 4). 15 The docket does not include a Notice of Appeal; thus, it was never received by the Court. 16 However, Plaintiff was able to move for reconsideration of the Court’s Order at Doc. 23. 17 (See Doc. 29.) Moreover, the denial of the Motions for Preliminary Injunction at Docs. 7 18 and 18 were denials without prejudice, meaning that Plaintiff may refile her requests for 19 relief. In these circumstances, Plaintiff cannot establish actual injury from a failure to 20 mail her Notice of Appeal. 21 Although Defendant’s failure to give Plaintiff the attachments that were included 22 with a letter from the Brennan Center for Justice, and Defendant’s apparent failure to 23 mail out some of Plaintiff’s personal correspondence are concerning, Plaintiff fails to 24 show how either of these instances constitutes an actual injury. 25 As to Plaintiff’s request that legal mail be opened in her presence, there is no 26 doubt that “prisoners have a protected First Amendment interest in having properly 27 marked legal mail opened only in their presence.” Hayes v. Idaho Corr. Center, 849 F.3d 28 1204, 1211 (9th Cir. 2017). But “mail from the courts, as contrasted to mail from a - 29 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 30 of 40 1 prisoner’s lawyer, is not legal mail.” Id. (quoting Keenan v. Hall, 83 F.3d 1083 , 1094 2 (9th Cir. 1996). Plaintiff submits a copy of a United States Bankruptcy Court, Southern 3 District of New York document titled “Notice of Deadlines for Filing Proofs of Claim,” 4 which sets out the deadlines for individuals to file proofs of claim in a debtor’s chapter 11 5 case, and which Plaintiff states was sent to her from the law firm of Skadden, Arps, Slate, 6 Meagher & Flom LLP. (Doc. 35-2 at 3–6.) Plaintiff also submits a copy of an envelope 7 addressed to Plaintiff from GLAAD Legal Advocates and labeled “Legal Mail from 8 Attorney Office, Do Not Open.” (Doc. 35-2 at 3–6, 8.) Plaintiff avers generally that 9 these documents, which constitute legal mail, were opened outside of her presence, read, 10 and photocopied. (Doc. 35-1 at 2, Pl. Decl. ¶ 8.) But Plaintiff does not present any 11 specific facts to show personal knowledge that the documents were in fact opened outside 12 of her presence, read, and photocopied. Without more, she fails to state a claim for a 13 First Amendment violation based on officials opening legal mail outside of her presence. 14 Plaintiff alleges that she “has attorneys in several cases,” but is limited to one 1515 minute phone call a month to family and attorneys and can otherwise only speak with an 16 attorney if that attorney requests a private call. (Doc. 35 at 11–12.) “The right of access 17 to courts has been found to encompass the right to talk in person and on the telephone 18 with counsel in confidential settings[.]” Hydrick v. Hunter, 500 F.3d 978, 999 (9th Cir. 19 2007), vacated and remanded on other grounds by 556 U.S. 1256 (2009). But the right 20 to speak with counsel privately on the telephone under the right to access courts is subject 21 to “legitimate restrictions related to the purpose and circumstances of detention.” Id. at 22 999-1000. Plaintiff does not explain how Defendant’s restrictions on telephone use has 23 interfered with her ability to litigate this case or any of her other cases. Plaintiff claims 24 that she cannot initiate a telephone call to an attorney in an emergency; however, she 25 does not allege or show that there has been such an emergency, that she suffered harm as 26 a result of being unable to make a call to an attorney, or that there is a likelihood she will 27 need to make an emergency telephone call to an attorney. (Doc. 35 at 12.) — 28 — - 30 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 31 of 40 1 In sum, Plaintiff fails to show actual injury or the likelihood of actual injury as 2 required to support an access-to-the-court claim. Accordingly, her requests for injunctive 3 relief related to access to the courts will be denied. 4 E. Preliminary Injunctive Relief Related to Solitary Confinement 5 (Docs. 31, 35, 62) 6 Plaintiff seeks injunctive relief enjoining the BOP from segregating her in the 7 SHU at USP-Tucson. (Doc. 31 at 57; Doc. 35 at 21; Doc. 62 at 2, 60–62.) Plaintiff has 8 been transferred from USP-Tucson to SAU-Allenwood, and therefore the requested 9 injunctive relief is moot to the extent Plaintiff seeks release from the SHU at USP10 Tucson. However, if liberally construed to request release from segregated confinement 11 in general, the requests are not moot, because Plaintiff avers she remains housed in 12 solitary confinement at SAU-Allenwood. (See Doc. 100 at 2.) 13 Even if Plaintiff’s requested injunctive relief is not moot, however, the Court is 14 without authority to grant the relief because it does not bear a sufficient nexus to the 15 remaining claims in Plaintiff’s operative SAC. Plaintiff alleged retaliatory placement in 16 the SHU in former Count Four of the SAC, but as discussed above, Count Four was 17 dismissed on screening. Plaintiff’s requests for preliminary injunctive relief requiring the 18 BOP to release her from solitary confinement to the general population of a male 19 institution do not have a sufficient nexus to the remaining claims of the SAC, which 20 allege that Plaintiff should be treated as female and housed in a female institution. If 21 Plaintiff seeks injunctive relief related to allegations that the BOP has housed her in 22 solitary confinement and transferred her to SAU-Allenwood in retaliation for her 23 litigiousness, or if she seeks to challenge her confinement in segregation under the Fifth 24 or Eighth Amendments, Plaintiff may move to amend her SAC. 25 The Court also notes that Plaintiff has filed Petitions Under 28 U.S.C. § 2241 for a 26 Writ of Habeas Corpus requiring her release from segregation or solitary confinement in 27 CV-23-00074-RM and CV-23-00273-RM.20 It is uncertain whether the Court has habeas 28 20 Plaintiff filed a similar Petition in CV-20-00071-RM and has an ongoing appeal of that case pending in Ninth Circuit case number 23-15025. - 31 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 32 of 40 1 jurisdiction in those cases. See Pinson v. Carvajal, 69 F.4th 1059 , 1070-72 (9th Cir. 2 2023). But Plaintiff may move to amend her SAC in this case to assert claims for 3 injunctive relief under 28 U.S.C. § 1331 for the claims asserted in the § 2241 Petitions. 4 F. Preliminary Injunctive Relief Related to Female Policies and 5 Transition to a Female Institution 6 Plaintiff requests injunctive relief requiring the BOP to treat her as female under 7 its policies and regulations (Doc. 18 at 11; Doc. 31 at 58) and to begin transitioning her to 8 a female institution (Doc. 31 at 57). In support of this requested injunctive relief, 9 Plaintiff avers that, because she has been designated maximum custody pursuant to the 10 BOP’s classification system for male inmates under Program Statement 5100-08, she has 11 been categorically excluded from housing in lesser security institutions and from gender 12 confirmation surgery. (Doc. 18-1 at 1–4; Doc. 31-1 at 4–5.) She avers that, due to her 13 gender dysphoria, her ineffective hormone therapy, her inability to obtain gender 14 confirmation surgery, and her housing in male institutions, she has endured physical and 15 sexual assaults as well as pervasive sexual harassment; she has attempted suicide and 16 auto-castration repeatedly; and she has suffered from depression, post-traumatic stress 17 disorder, and anxiety. (Id. at 5–7.) Plaintiff submits a response to a March 31, 2023 18 Request for Administrative Remedy, which states that Plaintiff’s public safety factors 19 have been appropriately scored using the BOP’s male classification procedures because 20 the scores are based off an inmate’s designated institution. (Doc. 31-4 at 1.) Plaintiff 21 also submits a response to a July 21, 2023 Regional Administrative Remedy Appeal, 22 stating that Plaintiff’s custody classification score was calculated using the BOP’s male 23 procedures because Plaintiff is housed in a male facility. (Doc. 62-1 at 7.) 24 In response, Defendant explains that the BOP’s Transgender Offender Manual, 25 Program Statement 5200-08, requires initial and transfer designations involving 26 transgendered inmates to be referred to the TEC, which designates transgender inmates 27 “on a case-by-case basis, with consideration to the inmates’ security level, criminal and 28 behavioral/disciplinary history, current gender expression, programming, medical, and - 32 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 33 of 40 1 mental health needs/information, vulnerability to sexual victimization, and likelihood of 2 perpetrating abuse.” (Doc. 54 at 2–3; see also Doc. 54-2 at 17.) Defendant avers that the 3 current iteration of the Transgender Offender Manual does not require the TEC to 4 consider biological sex as the initial determination in making designation and transfer 5 placements. (Doc. 54 at 3, 15; see also Doc. 54-2 at 12–25.) Defendant avers that the 6 TEC has determined Plaintiff should be housed in male facilities based on the factors 7 listed in the Transgender Offender Manual, including Plaintiff’s high security 8 classification, maximum custody level, failure to meet hormone treatment goals, and 9 failure to maintain clear conduct. (Doc. 54 at 4–5.) 10 Defendant argues that its policies survive intermediate scrutiny under the Equal 11 Protection Clause because (1) the BOP’s segregation of inmates into male and female 12 facilities “is substantially related to its important interest in preventing sexual assault and 13 disparate impacts to its female prison population”; (2) the BOP provides transgender 14 inmates “a meaningful opportunity to be housed in a facility that matches their gender 15 identities”; and (3) requiring the BOP to automatically designate transgendered inmates 16 to a facility matching the inmate’s gender identity—as opposed to using the 17 individualized, case-by-case approach set forth in the Transgender Offender Manual— 18 would put female inmates at undue risk of sexual assault. (Doc. 54 at 11–14.) Defendant 19 further argues that Plaintiff has no constitutional right to a particular security 20 classification or to be housed in any particular prison. (Id. at 14–15.) Accordingly, 21 Defendant argues that Plaintiff cannot show a likelihood of success on the merits 22 supporting her requested preliminary injunctive relief. (Id. at 8–16.) Defendant further 23 argues that Plaintiff’s allegations concerning violence and harassment that she 24 experienced at USP-Tucson do not demonstrate she is likely to suffer irreparable harm at 25 SAU-Allenwood. (Id. at 16.) Finally, Defendant argues that the balance of equities and 26 the public interest weigh in favor of denying Plaintiff’s requested preliminary injunctive 27 relief, and that Plaintiff’s requested relief is not narrowly tailored. (Id. at 16–17.) 28 .... - 33 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 34 of 40 1 1. Equal Protection 2 The Equal Protection Clause of the Fifth Amendment requires that all similarly 3 situated persons be treated alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 4 432, 439 (1985).21 Heightened scrutiny applies to discrimination on the basis of sex. See 5 Craig v. Boren, 429 U.S. 190, 197 (1976). “To withstand constitutional challenge” under 6 this heightened scrutiny standard of review, “classifications by gender must serve 7 important governmental objectives and must be substantially related to achievement of 8 those objectives.” Id. Laws that discriminate against transgender people are sex-based 9 classifications” and thus warrant heightened-scrutiny review. Doe v. Horne, No. CV-2310 00185-TUC-JGZ, 2023 WL 4661831 , at *16 (July 20, 2023) (citing Karnoski v. Trump, — 11 — 926 F.3d 1180, 1200-01 (9th Cir. 2019)). 12 2. Transition to a Female Institution 13 Plaintiff concedes that protecting female inmates from sexual violence is a 14 legitimate governmental interest. (Doc. 62 at 18.) She does not argue that this legitimate 15 governmental interest lacks a substantial relationship to the individualized, case-by-case 16 approach to the designation and transfer of transgender inmates that is set forth in the 17 Transgender Offender Manual. Plaintiff challenged in her SAC the BOP’s use of 18 biological sex as a basis for designation or transfer initial determinations (Doc. 14 at 7), 19 but the current version of the Transgender Offender Manual does not require the TEC to 20 consider biological sex as the initial determination in making designation and transfer 21 placements (see Doc. 54-2 at 12–25). Plaintiff does not challenge as unconstitutional the 22 individualized, case-by-case approach that the Transgender Offender Manual requires the 23 TEC to take in making transfer and designation determinations for transgender inmates. — 24 — 25 21 The Supreme Court’s approach to equal protection under the Fifth Amendment has always been “precisely the same” as its approach to equal protection under the Fourteenth 26 Amendment. Weinberger v. Wiesenfeld, 420 U.S. 636 , 638 n.2 (1975); see also United States v. Paradise, 480 U.S. 149 , 166 n. 16, (1987) (plurality opinion of Brennan, J.) 27 (“[T]he reach of the equal protection guarantee of the Fifth Amendment is coextensive with that of the Fourteenth . . . .”); Buckley v. Valeo, 424 U.S. 1, 93 (1976) (“Equal 28 protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.”). - 34 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 35 of 40 1 Instead, Plaintiff challenges the manner in which the TEC has applied the 2 Transgender Offender Manual’s individualized approach to her personal situation. (See 3 Doc. 62 at 10, 18–20.) Specifically, Plaintiff argues that the TEC did not appropriately 4 consider all factors set forth in the Transgender Offender Manual in its evaluations of her 5 case, and she argues that she does not pose a danger to female inmates because she is not 6 a sex offender, none of her crimes involved violence against women, she is strictly 7 attracted to men, and she cannot gain or maintain erections due to her hormone therapy. 8 (Id. at 6–11, 19–20; Doc. 62-1 at 1.) 9 “When an equal protection claim is premised on unique treatment rather than on a 10 classification, the Supreme Court has described it as a ‘class of one’ claim.” N. Pacifica 11 LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (quoting Village of 12 Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). “In order to claim a 13 violation of equal protection in a class of one case,” a plaintiff must establish that the 14 government intentionally and irrationally treated her differently from others similarly 15 situated. Id. An equal protection claim premised on class of one theory fails when the 16 challenged governmental action involves “discretionary decisionmaking based on a vast 17 array of subjective, individualized assessments.” Engquist v. Oregon Dep’t of Agr., 553 18 U.S. 591 , 603 (2008). 19 Defendant has submitted evidence showing Plaintiff is a high-security, maximum 20 custody inmate with an extensive disciplinary history that includes numerous violent 21 offenses, including the assault of a female prison officer in October 2016. (Doc. 54-2 at 22 6, 42, 50). Plaintiff was assigned maximum custody level on January 17, 2008—less 23 than one year into her federal incarceration—after she “demonstrated that she cannot 24 follow institutional rules.” (Id. at 50.) The record indicates that Plaintiff has committed 25 at least 59 disciplinary violations while in federal custody, including the aforementioned 26 assault on a female staff member, as well as “assaulting with serious injury,” “fighting 27 with another person,” “destroying property” of various valuations, “refusing to obey 28 orders,” “possessing intoxicants,” and numerous instances each of “possessing a - 35 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 36 of 40 1 dangerous weapon,” “threatening bodily harm,” and “assaulting without serious injury.” 2 (Id. at 42, 50). The record demonstrates that the TEC considered Plaintiff’s security 3 classification, maximum custody level, failure to obtain hormone level goals, and failure 4 to maintain clear conduct in determining that she should be housed in a male institution. 5 (Doc. 54-2 at 6–7.) The record further demonstrates that the TEC selected SAU6 Allenwood because it “specializes in housing high security inmates with serious mental 7 illness who require a secure setting,” and that the TEC may re-assess whether Plaintiff 8 should be placed at a female institution if Plaintiff “can address her mental health issues, 9 continue to participate in hormone treatment, and lower her security and custody levels.” 10 (Id. at 9.) On this record, Plaintiff has not established that “the facts and law clearly 11 favor her” so as to entitle her to mandatory preliminary injunctive relief requiring the 12 BOP to transition her to a female facility at this time. Dahl, 7 F.3d at 1403 (“mandatory 13 preliminary relief is subject to heightened scrutiny and should not be issued unless the 14 facts and law clearly favor the moving party”). 15 3. Requiring BOP to Use Female Procedures 16 Plaintiff avers that the BOP uses its male procedures to determine her custody 17 classification score (Doc. 18 at 10; Doc. 62 at 35–36, 50), and she has submitted evidence 18 supporting that averment (Doc. 31-4 at 1; Doc. 62-1 at 7). Plaintiff’s evidence indicates 19 that the BOP categorically uses its male procedures to calculate the custody classification 20 scores of transgender inmates housed in male institutions. (See Doc. 31-4 at 1; Doc. 62-1 21 at 7.) Accordingly, unlike Plaintiff’s challenge to the TEC’s decision to house her in 22 male institutions, Plaintiff’s challenge to the BOP’s use of male procedures to determine 23 the custody classification scores of transgender inmates in male institutions is not a class24 of-one claim. 25 Defendant has not adequately responded to Plaintiff’s argument that using male 26 procedures to calculate the custody classification scores of female transgender inmates 27 housed in male institutions violates the Equal Protection Clause. The Court will order 28 supplemental briefing on this issue. Pending the supplemental briefing, the Court will - 36 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 37 of 40 1 take under advisement the portion of Plaintiff’s March 16 PI Motion requesting a 2 preliminary injunction requiring the BOP to treat her as it treats female inmates under its 3 policies and regulations.22 The Court will also direct Defendant to address in its 4 supplemental brief whether Plaintiff is being provided access to female hygiene products 5 and female undergarments at SAU-Allenwood. (See, e.g., Doc. 62 at 16, 50.) 6 G. Requests to Supplement (Docs. 58, 97, 100) 7 In her Motion to Supplement Request for Evidentiary Hearing, Plaintiff requests to 8 supplement her Motions for Preliminary Injunction with testimony from the September 9 12-13, 2023 trial in case No. 19-CV-00401-RM (D. Ariz.). (Doc. 58 at 1.) Specifically, 10 Plaintiff seeks to use testimony from the trial that pertains to Plaintiff’s housing in 11 segregation and its impact on Plaintiff’s mental health, as well as testimony regarding the 12 times that prisoners in segregation have hurt themselves with contraband razors. (Id.) 13 Plaintiff also requests that a hearing be set at which she can present nine witness who will 14 testify as to conditions in the SHU, the lack of mental health and psychiatric care, and 15 Defendant’s response to suicide attempts. (Id. at 4–5.) In the alternative, Plaintiff seeks 16 limited appointment of counsel to take a videotaped deposition of one witness, Ralph 17 Aydelott, who has terminal liver cancer and receives end-of-life palliative care. (Id. at 5– 18 6.) 19 As stated in Section V(E), supra, Plaintiff’s requests for preliminary injunctive 20 relief requiring the BOP to release her from the SHU at USP-Tucson are moot in light of 21 her transfer to SAU-Allenwood. Furthermore, even if the Court were to liberally 22 construe the requests as seeking preliminary injunctive relief requiring the BOP to release 23 Plaintiff from solitary confinement, the requests do not have a sufficient nexus to the 24 remaining claims asserted in Plaintiff’s SAC. If Plaintiff wishes to challenge her 25 placement in solitary confinement in this case, she must move to amend her SAC. — 26 — — 22 — Plaintiff makes a duplicative request for preliminary injunctive relief in her June 26, 27 2023 Motion for Preliminary Injunction. (Doc. 31 at 57–58.) Because the request is duplicative and the Court is denying the other requests for injunctive relief contained in 28 the June 26 Motion for the reasons discussed in this Order, the Court will deny the June 26 Motion in its entirety. - 37 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 38 of 40 1 Given the scope of the remaining claims in the SAC, Plaintiff is not entitled to 2 preliminary injunction relief at this time regarding release from the SHU at USP-Tucson 3 or release from solitary confinement generally, and therefore no evidentiary hearing 4 regarding conditions in the SHU is necessary at this time. Accordingly, the Court will 5 deny Plaintiff’s Motion to Supplement Request for Evidentiary Hearing. 6 Plaintiff also requests that Defendant be required to file supplemental briefing 7 addressing how her transfer to SAU-Allenwood affects her pending motions (Doc. 97), 8 and she seeks to file a declaration regarding her transfer to SAU-Allenwood (Doc. 100). 9 The Court will grant Plaintiff’s Motion to File Supplemental Declaration to the extent it 10 has considered her supplemental declaration herein. The Court will partially grant 11 Plaintiff’s request that Defendant be required to file supplemental briefing addressing 12 Plaintiff’s transfer to SAU-Allenwood, to the extent that this Order requires Defendant to 13 address whether and how Plaintiff’s transfer to SAU-Allenwood affects Plaintiff’s status 14 for female-officer visual strip searches and her ability to purchase female commissary 15 items. 16 IT IS ORDERED: 17 1. Plaintiff’s Motion for Preliminary Injunction (Doc. 27) is partially denied 18 and partially taken under advisement pending further briefing. The 19 Motion is denied without prejudice to the extent Plaintiff requests 20 preliminary injunctive relief enjoining the BOP from using cisgender male 21 inmates or staff to observe her on suicide watch, and to the extent it 22 requests preliminary injunctive relief requiring the BOP to enforce 28 23 C.F.R. § 115.67 . The Motion is taken under advisement to the extent it 24 requests preliminary injunctive relief requiring the BOP and its staff to use 25 female officers for visual strip searches of Plaintiff. 26 2. Plaintiff’s Motion for Reconsideration (Doc. 29) is partially granted and 27 partially denied. The Court declines to reconsider its denial of Plaintiff’s 28 request for an injunction prohibiting her transfer to SAU-Allenwood. The - 38 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 39 of 40 1 Court will order supplemental briefing regarding Plaintiff’s request for an 2 injunction requiring the BOP to use its female procedures in calculating her 3 custody classification score. The Court takes that request under advisement 4 pending supplemental briefing. 5 3. Plaintiff’s Motion for Temporary Restraining Order (Doc. 31) is denied 6 without prejudice. 7 4. Plaintiff’s Motion for Preliminary Injunction to Protect Access to Courts 8 (Doc. 35) is denied without prejudiced. 9 5. Plaintiff’s Motion to Transfer Venue (Doc. 41) is denied. 10 6. Plaintiff’s Motion to Supplement Request for Evidentiary Hearing (Doc. 11 58) is denied without prejudice. 12 7. Plaintiff’s Expanded Motion for Preliminary Injunction (Doc. 62) is denied 13 without prejudice. 14 8. Plaintiff’s Motion for Temporary Restraining Order (Doc. 80) is denied. 15 9. Plaintiff’s Motion to Supplement (Doc. 97) is granted to the extent the 16 Court is requiring Defendant to address how Plaintiff’s transfer to SAU17 Allenwood affects her status for an exception to male officer searches and 18 her ability to access female hygiene products and undergarments, but is 19 otherwise denied. 20 10. Plaintiff’s Motion to File Supplemental Declaration (Doc. 100) is granted 21 to the extent the Court has considered Plaintiff’s declaration herein. 22 IT IS FURTHER ORDERED that within ten (10) days from the date of this 23 Order, Defendant shall file a Supplemental Response to Plaintiff’s Motions for 24 Preliminary Injunction (Docs. 18, 27) that addresses the following issues: 25 A. Whether Plaintiff was previously granted an exception for female-officer 26 searches; 27 B. If so, why that exception was canceled; 28 .... - 39 - Case 4:22-cv-00298-RM Document 115 Filed 02/13/24 Page 40 of 40 1 C. The effect, if any, of Plaintiff’s transfer to SAU-Allenwood on her status for an 2 exception for female-officer searches; 3 D. Whether the BOP’s use of male procedures to determine the custody 4 classification scores of female transgender inmates housed in male institutions 5 is substantially related to the achievement of an important governmental 6 objective; and 7 E. Whether Plaintiff is being provided access to female hygiene products and 8 female undergarments at SAU-Allenwood. 9 IT IS FURTHER ORDERED that Plaintiff may file a Reply to Defendant’s 10 Supplemental Response within seven (7) days of service of the Supplemental Response. 11 Dated this 12th day of February, 2024. — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — - 40 -